A decision by an Italian Court (Court of Catanzaro, 30 April 2012, downloadable HERE) has rekindled the interest of commentators on the issue of unfair contract terms, giving rise to lively comments.
The decision regarding the suspension of a professional account assigned to a dealer by the operator eBay leads to certain reflections on the validity of the unfair terms in online contracts between professionals.
In fact the decision states that “with regard to unfair terms online, the prevailing academic interpretation – to which the Court adheres – deems that the signing of the content of the contract is not in itself enough sufficient – rather, it is necessary to specifically sign with a digital signature. Generally speaking, therefore, an electronic contract is completed through the virtual contractual button, but unfair contract terms will be effective and binding only if specifically approved through the digital signature”.
Although the finding of the Court of Catanzaro did not have a decisive value for the purposes of the conclusions reached, some of the judges’ considerations indeed provide food for thought.
In fact analysis of article 1341, paragraph 2 of the Italian Civil Code should, in fact, lead to different conclusions, or at least justify a less assertive orientation.
According to art. 1341 of the Italian Civil Code, the standard contracts require “specific approval in writing” and not “specific signing in writing” for the unfair contract terms to be valid. One might therefore consider an electronic signature sufficient, even considering the final decision on the suitability of electronic documents signed with an electronic signature falls to the responsibility of the judge (Legislative Decree no. 82 of 2005 of the Digital Administration Code).
A recent ruling by the European Court of Justice which stated that eBay has liability for the selling of counterfeit goods on its pages offers food for thought on the motley phenomenon of online auctions.
EBay is a well-known website where registered users offer goods for sale which are purchased through a procedure which is in many respects similar to that of an auction. In fact, starting from a minimum price, the goods are “sold” to the party offering the highest price within a certain time limit. However, we should ask ourselves whether a genuine auction takes place on eBay and, consequently, what specific area of legislation should be applied.
What is meant by the term “online auctions”?
The expression “online auctions” may refer to different practices not all of which may be defined as genuine auctions.
The main distinctive feature is the role played by the auction house itself: in a genuine auction, the auction house carries out a series of operations for which it takes responsibility, ranging from guaranteeing the procedure is carried out correctly to providing detailed information on the goods at auction.
However, it is not rare for operators of sites where online auctions are held to limit themselves to providing potential buyers with the technological platform and refraining from carrying out any operation regarding the completion of the negotiation process. In other words, in these cases site managers can be compared to service providers and as such, subject to the provisions under Italian Legislative Decree no. 70 of April 9, 2003 which, as is well known, exempt the provider from a general obligation to monitor the information transmitted or stored, or from a preliminary investigation into facts or circumstances pointing to the presence of any illicit activity.
Are online auctions prohibited?
Art. 18, subsection 5 of Legislative Decree no. 114 of 31 March 1998 forbids online auctions, in the strict sense of the word, through the use of television or other means of distance communication. However, we would like to draw attention to the following point: not all online auctions are prohibited, but only those that are conducted between professionals and consumers. In more precise terms, as indicated by circular No. 3547 / C dated June 17, 2002, the ban only affects retail operators who conduct a direct sale to the final consumer. The reasoning behind this ban is clearly to avoid consumers from making purchases which are injudicious or not made in complete awareness.
From this analysis it emerges that it is only through case by case verification that we will be able to distinguish genuine online auctions from similar negotiation practices between a professional vendor and a consumer on which provisions on distance contracts referred to in Legislative Decree no. 206 of September 6, 2005 are applied.